Full Text
HIGH COURT OF DELHI
Date of Decision: 29th August, 2024
UNION OF INDIA THROUGH THE GENERAL MANAGER NORTHERN RAILWAYS & ORS. .....Petitioners
Through: Mr. Subhash Tanwar, CGSC
Mr. Ashish Choudhary, Advocates.
Through: Ms. Sonika Gill, Advocate.
HON'BLE MR. JUSTICE GIRISH KATHPALIA
JUDGMENT
1. The present writ petition under Articles 226 and 227 of the Constitution of India has been filed on behalf of the petitioners seeking a direction to set aside the order dated 28.11.2023 passed by the learned Central Administrative Tribunal in O.A. No. 3336/2022.
2. Notice issued. Learned counsel for the respondent accepts notice.
3. With the consent of parties, the present petition is taken for final disposal.
4. The respondent had approached the learned Tribunal seeking a 17:36 direction to the petitioners to conduct a review DPC and issue a fresh panel after considering the upgraded APAR for the year 2017-2018 with consequential benefits and grant him promotion to the post of Staff and Welfare Inspector.
5. In addition, the respondent had also sought quashing of order dated 10.10.2022 declaring to the effect that the inaction of petitioners not conducting the review DPC in respect of selection for the post of Staff and Welfare Inspector against 35% quota vacancies notified vide notification dated 06.09.2018 is totally illegal, arbitrary and against the rules consequently pass an order of setting aside the panel dated 20.08.2019 in respect of respondent herein.
6. The brief background of the case is that the respondent was appointed to the post of Signal Maintainer-I Level V on 28.02.2011 in Delhi Division, Northern Railways. The petitioners department issued a notification dated 06.09.2018 for filling up 4 vacancies for the post of Staff and Welfare Inspector and conducted the written test under 35% LDCE. The result was declared on 19.06.2019 and the final panel was issued on 20.08.2019.
7. The respondent was not selected on merit formed on the basis of marks obtained in the written examination and APARs grading in the years 2016-2017, 2017-2018, 2018-2019 and awards of punishments secured in last three years before notification of selection.
8. The respondent sought different information under RTI Act and thereafter approached Central Information Commission (CIC). He was provided with copies of his APARs for the years 2016-2017, 2017-2018, 17:36 2018-2019 and 2019-2020.
9. The respondent submitted his appeal dated 24.02.2022 before the Cadre Controlling Officer requesting upgradation of his APAR for the year 2017-2018 from “Very Good” to “Outstanding” which was allowed by the competent authority vide order dated 19.05.2022.
10. Thereafter, the respondent made a representation dated 30.05.2022 to the competent authority to modify the select panel of Staff and Welfare Inspector by considering his revised APAR for the year 2017-2018 having been revised on 19.05.2022. The respondent thereafter approached the learned Tribunal by filing OA No.1986/2022 seeking a direction to the petitioners to conduct a review DPC and issue a fresh panel. Learned Tribunal vide order dated 01.08.2022 directed to petitioners to consider respondent’s representation and to pass an appropriate order.
11. In compliance of order dated 01.08.2022, the competent authority of petitioners-Department considered the respondent’s representation and passed order dated 10.10.2022 declining his request holding that the panel had already expired as it was valid for only two years from the date of approval of the panel.
12. Being aggrieved, the respondent again approached the learned Tribunal by filing OA No.3336/2022 and sought quashing and setting aside of order dated 10.10.2022 passed by the competent authority of petitioners and conducting of a review DPC for consideration of his upgraded APAR for the year 2017-2018 and if necessary for creation of supernumerary posts. 17:36
13. The learned Tribunal vide order dated 28.11.2023 allowed the respondent’s OA by setting aside and quashing order dated 10.10.2022 passed by the petitioners with direction to forthwith convene a review DPC within 8 weeks for considering respondent for post of Staff and Welfare Inspector and if his name is recommended then grant him promotion and consequential benefits.
14. The petitioners-Union of India has assailed the aforesaid impugned order dated 28.11.2023 before this Court on the ground that the learned Tribunal has failed to consider the instructions prescribed under the Notification dated 06.09.2018 wherein it is stated that the panel was valid only for two years.
15. Learned counsel for petitioners has submitted that based upon the marks obtained in written examination and his record of service and the fact that his APAR for the year 2017-2018 was “Very Good” and not “Outstanding”. The respondent has been ignored for selection as a conscious decision, however, the learned Tribunal has allowed the respondent’s OA arbitrarily. Learned counsel further submits that the respondent could not find his place in merit as his APARs grading for the years 2016-2017, 2017- 2018, 2017-2018 and 2018-2019 as well as the marks obtained by him in the written examination were not as per merit and based upon the marks secured by him, he was not eligible for the empanelment.
16. It is also submitted that supernumerary posts are created only under special circumstances and since respondent’s APAR was revised after two years of issuance of notification, his revised APAR could not have been 17:36 considered whose currency had already expired. Thus, setting aside of order dated 28.11.2023 passed by the learned Tribunal in OA No.3336/2022 is sought by the petitioners.
17. To the contrary, learned counsel for respondent has submitted that the impugned order passed by the learned Tribunal is based upon merits and calls for no interference of this Court.
18. Having heard learned counsel for both the sides and on perusal of the impugned order as well as other material placed on record, this Court finds that in respect of Notification dated 06.09.2018, the final merit based panel was approved by the competent authority on 20.08.2019. On 21.08.2019, the respondent sought information under RTI Act regarding his marks and APARs. The said information was provided to the respondent on 14.11.2019, however, being incomplete, the respondent was forced to approach the Central Information Commission, who vide order dated 03.12.2021 directed the competent authority of the petitioners to provide the requisite information to the respondent.
19. In January, 2022, the respondent again approached the petitioner- Department under RTI Act seeking copy of his APARs for the years 2016- 2017, 2017-2018, 2018-2019 and 2019-2020 which was provided to him by the petitioners in February, 2022.
20. Having received the copies of his APARs on 14.12.2022, the respondent approached the Cadre Controlling Officer seeking upgradation of his APAR for the year 2017-2018 from “Very Good” to “Outstanding” which was granted vide order dated 19.05.2022. Soon thereafter, on 17:36 23.05.2022, the respondent made a representation to the competent authority to modify the select panel of Staff and Welfare Inspector considering his revised APAR for the year 2017-2018, however, finding no reply, he had to knock the doors of learned Tribunal by filing OA No.1986/2022 and only upon the direction of the learned Tribunal, vide order dated 01.08.2022, the competent authority of the petitioners passed the order dated 10.10.2022 that too rejecting his claim.
21. In this view of the matter, the respondent since the declaration approved panel on 20.08.2019, has been running from pillar to post seeking his reliefs and appropriate directions to the petitioners.
22. The Hon’ble Supreme Court and the High Courts in various decisions have already observed the importance of writing ACR/APAR for assessment of an officer, which forms the basis of career progression of an employee. It has also been held that the below bench mark grading are to be communicated to the employee concerned, giving an opportunity to make a representation within reasonable time.
23. The Hon’ble Supreme Court in Abhijit Ghosh Dastidar Vs. Union of India (2009) 16 SCC 146 has held that non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
24. This Court in Shri Tarsem Kumar Vs. Union of India & Ors. 2014 17:36 SCC OnLine Del 1899 has observed that the Annual Confidential Report (ACR/APAR) is a vital mode of assessment of the performance of an officer in the previous year. It is through this document that the suitability of an officer's promotion and career advancement is adjudged. It has also been observed as under:-
25. It is not the case of petitioners that respondent was communicated his APAR for the year 2017-2018 or despite having communicated, he did not make any representation in respect thereof.
26. It is relevant to note here that candidature of respondent was rejected by the competent authority of the petitioners, only on the ground that he had obtained grading “Very Good” instead of “Outstanding” for the year 2017-
2018. Despite making repeated requests, the competent authority of the petitioners while passing the impugned order dated 10.10.2022 did not take into consideration the fact that respondent’s APAR for the year 2017-2018 was revised from “Very Good” to “Outstanding” on 19.05.2022. Meaning thereby as on the date of passing of the order dated 28.11.2023, the stand of petitioners before the learned Tribunal was that the life of the panel was two 17:36 years from the date of notification of panel and was thus, not in existence. Thereby, competent authority of the petitioners did not take notice of respondent’s revised APAR which cannot be permitted.
27. In our considered opinion, once below bench mark APAR was upgraded of the relevant year, the same should have been placed before the DPC for considering respondent’s promotion on the basis of fresh gradings. The learned Tribunal has thus, rightly held that the entire purpose of upgradation of APAR defeats if the benefit of revised APAR is not granted to the respondent.
28. In view of above, finding no illegality or perversity in the impugned order dated 28.11.2023 passed by learned Tribunal, the present petition is hereby dismissed with direction to the petitioners to comply with directions enumerated in Paras- 14 and 15 of the impugned order within four weeks.
29. Pending applications also stand disposed of.
(SURESH KUMAR KAIT) JUDGE (GIRISH KATHPALIA)
JUDGE AUGUST 29, 2024/uk/r 17:36